Regardless of the legislative power used in Court, or the discretion exercised, it should be generally acknowledged that the main purpose of a legal action is to solve the issue or issues in contention. This is not only prescribed on the judge, but also on the parties who are seeking the outcome to their legal problems.
In the 21st century, justice should be accessible to everyone, in terms of costs and time, which means that there cannot be any meaningful results if the costs are burdensome and the duration of the trial is too long. Dispute resolution should be just, cheap and quick, with these aspects being interconnected since they all contribute to the achievement of a better legal system. They complement each other, and represent the modern definition of justice.
A solicitor from Sydney, Nas Hanafi, highlights that the main role of the Court in civil matters is to find out the truth and establish the rights of the parties, not to punish or correct them for their mistakes.
If a party is seeking legal action, then case management practices should not impinge the party’s rights, but if a prejudice has been caused, the other party must compensate by costs. Case management has been introduced to support justice and Court decisions, not to replace them. For some people, case management used to represent a threat for justice. Similarly, a quick and cheap trial may not always be the same as a just trial, which leads us to the idea that case management should be applied as long as it does not affect the correct application of the legal process.
Nas Hanafi also states that starting with the 1980s, Australia and other western democracies have started to implement political and economical strategies, which focused on the efficient allocation of resources. In terms of financial changes, this meant deregulation and privatization, connecting productivity and funding and pricing public resources. As a result, there has been a push for efficiency, and the public expects more in a shorter period of time, for lower prices.
Justice French once stated that the power of the Courts is granted by the public law. The Court should not fulfil the wishes of the parties at the expense of the public interest. The Court should ensure that the parties do not ask for something which will jeopardize the public interest. For this reason, legal action is taken not only to favour one party, but also to create a frame for future litigants and does not concern only the rights of the parties involved in a case, but also the public realm. The fact that justice should be quick and cheap does not eliminate or diminish the fact that there are thousands of other parties waiting for a resolution to their issues, which is why justice must be aware that its resources are limited, and a costly and long trial affects not only the parties involved, but also those who are waiting in line to access justice.
After case management started to become popular, there were some changes in the relationships between the advocates and the judges. Years ago, judges had a more passive role and advocates were more autonomous when managing a case, but nowadays, the judges are the ones controlling the use of Court time, as a means to achieve just, quick and cheap resolution. This power is guaranteed by the UCPR and the parliament. Furthermore, the costs of a trial have increased, compared to other public services and due to the complexity of legislation and factual disputes; parties must be managed by an entitled authority. Case management has appeared as a result of the current reality (limited resources, litigious society and Court lists) and has developed so much that no procedure can deliver justice if it is devoid of it. This means that case management is no longer an optional term and it does not have a supportive role, but it has become a synonym of justice.
As far as the efficient use of resources, Nas Hanafi says that a trial should be just, quick and cheap – the three aims which should act as a whole for the success of a case and for the right resolution, not only for the parties involved, but also for the public.
For further information call Nas Hanafi on (02) 9251 2722